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Abstract: The alternative process of mediation is now well-institutionalized and widely (though not universally) perceived to save time and money and satisfy lawyers and parties. However, the process has failed to meet important aspirations of its early proponents and certain expectations and needs of one-shot players. In particular, court-oriented mediation now reflects the dominance and preferences of lawyers and insurance claims adjusters. These repeat players understand the problem to be addressed in personal injury, employment, contract, medical malpractice and other ordinary civil non-family disputes as a matter of merits assessment and litigation risk analysis. Mediation is structured so that litigation issues predominate; other potential issues - personal, psychological, relational, communitarian - disappear.
This approach to mediation may be satisfactory to many parties and appropriate for courts that must engage in the mass processing of cases. But at least some individual one-shot players, who suddenly must seek redress or defend themselves, need something more. This Article describes a case involving such parties, dealing with their son's heart-breaking disabilities and the narrow problem definition of their two mediations. We consider why the problem definition of their mediations mattered to these parties and how the mediation sessions could have been different. We then propose a systematic method that would enable the customization of mediation sessions, along with three initiatives that courts and private dispute resolution provides could adopt. These initiatives would provide parties with the opportunity to choose whether they wish to engage in a customized process. We also explore why courts should take the lead in experimenting with the breadth of the problems to be resolved by non-family civil court-oriented mediation.
Abstract: This paper is an extended version of a luncheon presentation given at the Symposium, Ethics in the Expanding World of ADR: Considerations, Conundrums, and Conflicts, sponsored by South Texas College of Law in Houston, Texas, on Nov. 2, 2007.
mindfulness, ethics, dispute resolution, ADR
Abstract: This Article proposes that introducing mindfulness meditation into the legal profession may improve practitioners' well-being and performance and weaken the dominance of adversarial mind-sets. By enabling some lawyers to make more room for - and act from - broader and deeper perspectives, mindfulness can help lawyers provide more appropriate service (especially through better listening and negotiation) and gain more personal satisfaction from their work.
mindfulness, law practice, legal education, negotiation, active listening, dispute resolution, ADR, mediation, meditation
Abstract: When Professor Richard Reuben asked me to speak about the most basic ideas in conflict resolution to a group that included renowned journalists and journalism scholars, I balked. Surely these notions would seem too obvious, mundane, or superficial. But Richard - a practicing journalist for many years as well as an expert on conflict - assured me that the audience would find most of them surprising and useful. I hope he is correct.
I plan to present eleven ideas from the dispute resolution literature that I find particularly helpful in my work and life and which I think any journalist would benefit from knowing. The list is a bit idiosyncratic, reflecting my own peculiar journey in the academic and professional worlds of conflict, which has leaned toward the kinds of disputes in which lawyers routinely get involved. So I make no claim that these are the top eleven ideas, and I hope that other commentators will supplement and amend this list.
dispute resolution, ADR, conflict
Abstract: This Article addresses the problem of mindlessness in counseling, negotiating, and mediating, and offers potential solutions and recommendations for developing foundational capacities through training in mindfulness meditation.
mindfulness, dispute resolution, mediation, ADR, legal education, counseling, negotiation
Abstract: This Article discusses systems for understanding mediators' orientations, strategies and techniques.
Mediation, Mediator, ADR, Dispute Resolution
Abstract: This article is the transcription of the panel discussion held at the Alternative Dispute Resolution Section of the Association of American Law School’s 1994 annual meeting on the topic of “What Happens When Mediation is Institutionalized?” Panel members are James Alfini, John Barkai, Robert Baruch Bush, Michele Hermann, Jonathan Hyman, Kimberlee Kovach, Carol Liebman, Sharon Press, and Leonard Riskin
ADR, alternative dispute resolution, mediation, institutionalization, courts
Abstract: This essay is based primarily on materials the author developed for courses taught at the University of Missouri-Columbia, School of Law, in the winter 2002 and 2003 semesters, based on Barry Werth's book, "Damages."
legal education, mediation, dispute resolution, ADR, mediator
Abstract: This Article reviews the author's previous mediator-orientation models and proposes a new system for understanding the range of mediator orientations based on substantive, procedural, and meta-procedural decision-making grids.
mediation, mediator, dispute resolution, ADR
Abstract: This article is adapted from the Notre Dame Law Review article in which the author proposes a "New New Grid System" to replace his earlier proposed models for understanding mediators' orientations.
mediation, dispute resolution, ADR, mediator
Abstract: This chapter excerpt explains the nature of the states of mind characterized by mindfulness and loving-kindness and gives practical suggestions on how to develop these states of mind and deploy them in relation to law practice situations in order to provide better service to your clients and gain more satisfaction from your work.
mindfulness, negotiation, dispute resolution, ADR
Abstract: Seven law school faculty members and one practicing attorney recently developed and taught a wholly new kind of law course based on an already published case study, Damages: One Family's Legal Struggles in the World of Medicine, by Barry Werth, an investigative reporter who spent several years researching to write the book. Damages, an in-depth account of a medical malpractice case, presents the perspectives of the injured family, the defendant physician, the lawyers, and the three mediators. In this Symposium Introduction, the authors provide a summary of Werth's book, explain why they decided to create a course based on his book, describe the course, and suggest ways that other law schools might use the course materials they developed.
legal education, dispute resolution, mediation
mindfulness, loving-kindness, law practice
Abstract: This Article discusses the principal issues relevant to the inclusion of mediation in law school curricula.
mediation, alternative dispute resolution, legal education
Abstract: This Article examines how to maximize the benefits of mediation and limit its risks.
mediation, alternative dispute resolution
Abstract: This Article addresses the special dangers of placing one lawyer in a neutral position, as either a mediator who uses legal skills along with other dispute resolution techniques to resolve a dispute or plan a transaction, or an "impartial advisory attorney" who gives legal advice but does not attempt to facilitate an agreement.
mediation, mediator, alternative dispute resolution, neutral lawyer
Abstract: This Article suggests that the civil action based upon a lack of informed consent, as applied by the courts to date, is inadequate to its assigned task. The Article suggests judicial and legislative changes in the informed consent action to remedy the identified weakness.
informed consent, negligence, battery, medical, patient, tort
Abstract: This Article begins with a review of previous efforts to categorize mediation and their shortfalls, including the lack of any widely-shared comprehensive method for describing the various approaches to mediation practice. The Article then offers a new "grid" system for classifying mediator orientations, strategies, and techniques and describes the potential utility of the grid, particularly its effectiveness in selecting mediators.
mediator, mediation, alternative dispute resolution, grid, mediator orientation, facilitative, evaluative
Abstract: Traditional litigation, though appropriate in some cases, has given rise to a tide of dissatisfaction. Complaints include high cost, delay, emotional trauma for the parties, and inadequate remedies. Each of these deficiencies stems in part from the tendency of law school education to focus on litigation and the adversarial view of human relations on which it is based, a focus exemplifIed by the traditional reliance on the study of decisions by appellate courts. (This perspective also accounts for a good deal of the public's displeasure with lawyers, and for a good deal of job dissatisfaction among lawyers.) In response to problems surrounding traditional litigation, an array of programs have developed to foster alternative methods of dispute resolution, including negotiation, mediation, arbitration, and combinations of these (called 'mixed' processes), such as the mini-trial and summary jury trial.
Beginning in 1985, the University of Missouri-Columbia School of Law systematically integrated the teaching of alternative dispute resolution into all standard fIrst-year law school courses. That project, supported by two substantial grants from FIPSE (the U.S. Department of Education's Fund for the Improvement of Post-Secondary Education), produced law school course books, an instructor's manual, and a series of videotapes. Under a subsequent (1995-97) grant, the project helped six law schools develop adaptations of the Missouri plan that integrated dispute resolution into their curricula as a way to teach a variety of perspectives and skills necessary for modem law practice and to broaden the focus of legal education.With assistance from the Center for the Study of Dispute Resolution at the University of Missouri-Columbia, these law schools (DePaul, Hamline, Ohio State, Inter-American, Tulane, and the University of Washington) developed adaptations of the Missouri plan and produced new publications, teaching materials, and insights about teaching dispute resolution in law schools. This is a slightly-updated version of the 1998 FIPSE Report, focusing primarily on accomplishments under that grant as of October 1997, when the 'adapting' schools submitted their own reports.
alternative dispute resolution, negotiation, mediation, arbitration, mixed processes, mini-trial, legal education, law educator, courses, materials, teaching, law school, curriculum
Abstract: This Article describes the background and implementation of the project at University of Missouri-Columbia School of Law to include dispute resolution materials in first-year courses, and assesses its impact on legal education and its potential for changing the "lawyer's standard philosophical map."
legal education, alternative dispute resolution, Missouri plan, Missouri-Columbia school of law
Abstract: This Article discusses the problem of sexual relationships between adult, competent patients and properly trained and licensed psychotherapists, examines the failure of social control devices to deter the activity and their success in inhibiting the production of information about it, suggests an alternative community policy and, finally, proposes a means of carrying out that policy.
sexual relations, ethics, psychotherapist, patient, psychotherapy, professional organization, licensing authority
Abstract: This is an excerpt from an extensive work-in-progress dealing with mediator orientation and behavior.
Abstract: This Article describes the background and implementation of the Farmers Home Administration's massive effort to mediate between farmers and their creditors over delinquent loans, explains the two radically different forms of mediation employed, and discusses the significance of these developments for organizations and individuals outside the FmHA.
mediation, mediator, alternative dispute resolution, Farmers Home Administration, Agricultural Credit Act, loan servicing, broad mediation, narrow mediation
Abstract: This Article sets out various perspectives that litigants, lawyers and judges commonly bring to settlement conferences, perspectives on lawyer-client relations, negotiation, and the role of the judicial host. In examining the opinions in the Heileman case, along with other materials, the Article attempts to uncover the underlying assumptions about the settlement conference that informed the behavior of the judges and lawyers in that case, arguing that Heileman's explanation lies in the lawyers' and judges' tendency to embrace one of two radically different visions of the settlement conference. The Article then catalogs the advantages and disadvantages of involving clients in settlement conferences and describes the many different ways in which a client can participate, and offers general suggestions about when and for what purposes a judicial host should require a litigant or a representative of an organizational litigant to accompany the litigant's lawyer to a settlement conference. It then proposes an explanation for the expression "full authority to settle the case" as it applies to an organization. Finally, the Article reviews the obligations of the client or client representative once he or she appears at the settlement conference and suggests a special benefit flowing from client participation in settlement conferences.
settlement conference, mediation, mediator, Heileman, alternative dispute resolution
Abstract: A response to Professor Pipkin's criticism of the term "problem-solver" to describe the model attorney promoted by the Missouri program.
Abstract: This article addresses missed opportunities in court-oriented mediation that may result from the habitual narrow focus of repeat players in the process. Welsh and Riskin propose four mechanisms to allow mediation participants - particularly one-shot players - to explore problems more broadly and to engage in the process of choosing the most appropriate problem-definition for the mediation of their case.
mediation, dispute resolution, ADR
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